This Sales Quote expressly includes and incorporates by reference the General Terms and Conditions listed below, and together prevail over any customer-provided terms and conditions of purchase included in Customer’s purchase order or provided separately.  Customer’s Purchase Order shall cite this Sales Quote and, upon issuance by Customer shall constitute Customer’s acceptance of this Sales Quote and the General Terms and Conditions.

Terms and Conditions of Sale, Markey Machine LLC

These General Terms & Conditions (“Terms”) govern the sale of products (“Products” or “equipment”) and related services (“Services”) provided by Markey (“Markey”) to you (“Customer”).  These Terms, including the Commissioning Labor Policy and the Remote Access Policy set forth below, as applicable, together with the Markey sales quote in which these Terms and Conditions of Sale are expressly referenced (the “Sales Quote”), comprise the entire agreement between the parties and supersede all prior or contemporaneous agreements, both written and oral, and prevail over any customer-provided terms and conditions of purchase.  In the event of conflict between these Terms and Markey’s Sales Quote, the latter shall control.  Customer purchase orders (“Customer Purchase Orders”) shall cite Markey’s final Sales Quote.

I.  Commercial Terms and Conditions

  1. Pricing
    All pricing is quoted Incoterms® rule EXW (exworks), Seattle, Washington, unless otherwise noted in the Sales Quote. Firm-fixed pricing (“FFP”) shown in Sales Quotes is valid for thirty (30) days unless otherwise noted.  Budgetary or rough-order-of-magnitude (“ROM”) pricing may be provided in response to preliminary or incomplete service requests or  bid specifications, or may be provided for other reasons precluding FFP.  Budgetary or ROM pricing is intended for Customer planning purposes only and is therefore non-binding upon Markey.  Final pricing shall be as set forth in the applicable invoice.
  1. Payment
    Mutually-acceptable progress payment terms are required unless otherwise noted. All payments are due within thirty (30) days of Customer receipt of Markey invoice (“Net 30”). Outstanding balances unpaid after Net 30 shall be subject to a finance charge of 1.5% per month on any outstanding balance, plus all expenses of collection (including reasonable attorney’s fees). Pricing is exclusive of, and Customer is responsible for, all sales, use and excise taxes and any other similar taxes, duties, and charges. Customers outside the U.S. shall execute payments by means of mutually-acceptable Letter of Credit or wire-transfer.  For all payments by credit card (Amex, Visa, Mastercard) a 3.5% service charge will be added.
  1. Change 
    In the event that Customer modifies Product design or other specifications prior to completion of manufacture (“Change”) and provides written notice to Markey of such Change (email ok), Markey shall endeavor to retain original quoted costs and delivery dates and shall notify Customer in writing (email ok) if Markey is able to accommodate such Change.  Notwithstanding this provision, the Customer understands that reasonable adjustment of costs and/or delivery dates may be required by Markey. 
  1. Shipment
    If Markey undertakes Product delivery at Customer request, freight costs will be prepaid and added to the final invoice. All freight charges on orders for parts or ancillary equipment shall include a 10% markup. Notwithstanding any Markey responsibility for any Product delivery, in no case shall Markey be subject to fees or penalties, including without limitation those associated with demurrage, due to delays in shipment.
  1. Delivery 
    Markey shall in all cases endeavor to deliver Products and Services timely and in accord with delivery dates indicated on Customer Purchase Orders.  However, Markey shall not be liable for late-delivery penalties in the event of Force Majeure events as defined in Article 18, nor shall Markey be liable for damages as stipulated in Article 19.    
  1. Title Transfer 
    Title to the Products shall transfer to Customer upon final payment covering all outstanding balances due on any Markey invoices.  In the event Customer has not paid in full, Markey shall retain a security interest equal to the unpaid balance due for said Products.
  1. Limited Warranties 
    • Product Warranty: Products manufactured by Markey are guaranteed against faulty workmanship and defective material for a period of Three (3) years from delivery EXW, or if the parties have agreed to FOB, then from delivery FOB (free on board)  the Customer’s address or Customer’s designated consignee address, as applicable (the “Warranty Start Date”).  Any defective equipment will be replaced or corrected at the sole discretion of Markey. The sole liability of Markey is limited to such replacement or correction.  
    • Services Warranty:  Markey has the requisite resources, skill, experience, and qualifications to perform the Services in a professional and workmanlike manner, in accordance with generally recognized industry standards for similar services. 

The Limited Warranties are subject to proper storage of Markey Products (as indicated in standard Markey Operational Manual provided), prior to installation and commissioning of the Product by Markey or Markey-authorized representatives.  If the Product has not been stored properly, then Markey may, in its sole discretion, either (a) elect to void the warranty or (b) limit the warranty to one (1) year from the Warranty Start Date. 

  1. Warranty Limitations
    The foregoing Limited Warranties shall not apply to any Products that have been repaired, altered, or modified in any fashion by any person or entity other than Markey so as to affect, in Markey’s sole judgment, the stability, reliability or utility of said Products’ use in the capacity for which they were intended as communicated by Markey.  Other than the Limited Warranties specifically set forth hereunder, SELLER (MARKEY) MAKES NO FURTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE NOT SPECIFICALLY SET FORTH HEREIN. 

II. Technical Terms and Conditions

  1. Manuals
    Each Product shipset includes one (1) electronic copy (.pdf) of the standard Markey commercial Operation Manual. Mil Spec or other customized manuals are available at added cost. 
  1. Spare Parts
    Recommended Spare Parts Lists may be included upon request.  Due to the custom nature of Markey’s Products, Spare Parts quotes shall not be available until design engineering is completed. If necessary for Customer to plan for Spares budget, ROM cost for Spares will be approximately 2% – 3% of the base equipment price.
  1. Product foundations and attachment 
    Products are designed to be shimmed and welded to the applicable equipment foundation. Equipment designed for bolt-down connection is available at added cost. Some classes of machinery are not appropriate for bolt-down due to high loads. If bolt-down is furnished, the hold-down bolts shall be provided by third party vendors.
  1. Hydraulic systems
    Hydraulic systems require flushing and must be cleaned according to ISO 17/14 (NAS 1638 Class B) standard (“ISO Standard”). Contamination above maximum allowable levels identified in the ISO Standard will void the Product warranty. Review and approval of the flushing equipment and procedures is recommended and may be required by Markey, to assure optimum results. Oil samples, taken after the equipment has been in operation, may also be required by Markey.
  1. Painting of equipment 
    Markey’s paint procedure is to Sandblast to SSPC-SP10 “near-white”, to Primer-Coat with International (or equal) Zinc-Rich Epoxy, and to Top-Coat with International (or equal) KH Marine Epoxy (gray or black standard). Other painting systems can be quoted upon request.
  1. Testing 
    Markey undertakes in-shop no-load testing of equipment. Additional special testing programs, including load- testing, may be quoted on request.
  1. Anchor Windlasses
    To ensure correct operation of Markey anchor-windlasses, Markey shall review and approve the complete anchor-handling system design from the chain-locker to the anchor.
  1. Electric Motors 
    In the event that Customer provides third-party electric motors, and/or motor starters, drives, and controls for any electric motors, Customer shall be responsible for consultation with the applicable third-party provider’s factory for design assistance, to ensure that provisions are made for special wiring, interlocks, space-heaters, etc.  

III.  Other Terms and Conditions

  1.  Exclusions
    • Installation and Startup.  Product installation and startup are not included in Markey’s standard Sales Quotes but may be quoted separately upon customer request. Markey Technical Representatives (either Markey staff or Markey-designated authorized representatives) are available to oversee Product installation, initial system startup, and to execute sea-trials at the Standard Rates in effect at the time of service, as described below.
    • Foundations and Structural Reinforcement.  Markey does not supply foundations and/or structural deck or below-deck reinforcements to support Markey Products.  
    • Wiring and Connections.  Electrical wiring and connections to the Markey Products are not included.
    • Hydraulic connections.  Markey does not provide hydraulic piping, hoses, fittings, and related incidentals required to connect winches to the hydraulic power source.
    • Winch wires, ropes, and spooling.  Markey does not supply wire rope, soft-line or other line types, or spooling of said ropes or lines, but these may be quoted separately upon Customer request.  
    • Oil.  Markey Products are shipped dry, without oil. 
    • Miscellany.  Items not supplied by Markey may also include, depending on the equipment offered: hydraulic oil, coolants, cooled freshwater, electrical power (110V, 208V, 460V, etc.), 150 PSI ship’s air-supply (dried and filtered), and related incidentals.
    • Certification society approvals.   ABS, DNV, LR, BV or other certification approvals are not included, but may be quoted separately upon customer request. 
  1. Force Majeure
    Neither party shall be liable or responsible to the other party for any failure or delay in fulfilling or performing any of these Terms (except for payment obligations) where such failure or delay is caused by acts beyond the party’s reasonable control, including without limitation acts of God, epidemics, floods, fires, earthquakes or explosions, wars or military operations, acts of terrorism, embargo, or blockade, and strikes or other industrial disturbances (“Force Majeure” events.    Delivery delays caused by any of the foregoing circumstances shall be excused, and Customer and Markey shall negotiate revised delivery dates reasonably and in a spirit of good faith.
  1. Damages
    Notwithstanding any provision hereunder or any provision in Customer purchase order, under no circumstances nor for any reason shall Markey be subject to any consequential, special, collateral, punitive, indirect or associated damages.
  1. Survivability 
    If any Term hereunder is deemed invalid, illegal, or unenforceable in any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. 
  1. No Third Party 
    These Terms are for the sole benefit of the parties hereto and shall not confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.
  1. Governing Law
    These Terms shall be interpreted, construed and enforced according to the laws of the State of Washington without regard to its rules relating to choice of law. In the event of a dispute or other legal action arising hereunder, each party consents to the jurisdiction and venue of the King County Superior Court, Seattle, Washington, United States of America.